In Part I, I provide necessary background on the current re- gime of federal appellate jurisdiction before turning to the rise and fall of Gillespie and the balancing approach. Part I concludes by explaining how inconsistent Gillespie and the balancing approach are with the Supreme Court's current approach to appellate jurisdiction. Part II turns to five areas in which the balancing approach persists in the courts of appeals and demonstrates the influence of the balancing approach, and the often case-by-case nature of decision-making, in each of these areas. And in Part III, I explore the implications of the balancing approach's persistence for the major focus of the interlocutory appeals literature- reform. I explain how this persistence suggests that appellate judges cannot resist using some flexibility in defining their juris- diction. I conclude with a preliminary suggestion of how to account for flexibility's allure: a jurisdictional regime that mixes categorical rules and discretion.
Dizzying Gillespie: The Exaggerated Death of the Balancing Approach and the Inescapable Allure of Flexibility in Appellate Jurisdiction,
U. Rich. L. Rev.
Available at: https://scholarship.richmond.edu/lawreview/vol51/iss2/4